205 P. 215 | Mont. | 1922
delivered the opinion of the court.
Plaintiff was injured in a collision between a motorcycle and an automobile upon the public highway, and brought this action to recover damages for his injuries. The ease was tried before a jury, which- rendered a verdict in favor of plaintiff for the sum of $5,075, and judgment followed. Motion for new trial was made and denied. Defendant has appealed from the judgment and the order.
The specifications of error raise questions as to the sufficiency of the complaint to state a cause of action, the sufficiency of the evidence to support the verdict, and the alleged excessiveness of the damages given by the jury under the influence of passion and prejudice.
The law governing traffic upon the highway is fixed by statute, and reads as follows: “Traffic must everywhere and at all times keep to the right. Vehicles moving in opposite directions must pass each other by turning to the right. Vehicles moving in the same direction must pass by turning to the left on the part of the one passing and turning to the right on the part of the one being passed. At all times, curves, corners
Defendant urges that the complaint is defective for three
The complaint alleges: “That plaintiff drove to his extreme right side of the road while fully 250 feet away from the defendant, but that the defendant did not drive to his right side of the road, but continued on toward the plaintiff without making any attempt whatever'to drive to his [the defendant’s] right side of the road as he should have done; that as the result of defendant’s negligence, wrong, default, carelessness, and want of due care, he drove his said automobile directly into the plaintiff and his motorcycle.”
In view of the fact that the statute expressly provides that “vehicles moving in opposite directions must pass each other by turning to the right, ’ ’ and that ‘ ‘ at all times * * * vehicles # * * must keep to the right so that if the width of the road permits there is room on their left for the passing vehicle that may at any time suddenly or unexpectedly appear,” the allegation that defendant was pn the left side of the road when they met makes a prima facie charge of negligence. While it may be true that one may be driving upon the left side of the road under certain circumstances without being guilty of negligence, yet in any particular ease such circumstances are
Any claim by defendant of contributory negligence on the. part of plaintiff was a matter of defense, and plaintiff did not1 need to allege freedom from contributory negligence in his1 complaint. (Vasby v. United States Gypsum Co., 46 Mont. 411, 128 Pac. 606; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781; Stewart v. Pittsburg etc. Copper Co., 42 Mont. 200, 111 Pac. 723.)
Contention is made that the evidence is insufficient to sus-! tain the verdict for the reason that it does not appear that plaintiff himself turned out seasonably, that he was driving in a careful and prudent manner, and that plaintiff’s own act' was the proximate cause of the injury. From the evidence in' the case we are satisfied that all these questions were questions of fact to be resolved by the jury whose verdict upon those features of the case is controlling. j
Defendant urges that the amount awarded is excessive, and
For the reasons herein given, the judgment and the order denying motion for new trial are affirmed.
Affirmed.